TaxTMI 
TaxTMI 
2011 (5) TMI 1085
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....my Father, let my country awake. - Poet Laureate, Rabindranath Tagore I. 2. The vexed question of access to education has hounded India from times immemorial. The futile pleadings of an Ekalavya for a teacher, that could not even be suppressed in the recesses of our cultural consciousness, to the modern day demands for exclusion from portals of knowledge of the "others", deemed to be unfit even if lip service of acknowledgement is paid that such "unfitness" may be due to no fault of theirs but is rather on account of their social, economic and cultural circumstances, gouges our very national soul. Even as higher levels of knowledge becomes vital for survival, and its technologies become capable of empowering those who belong to groups, that historically and in the present have been excluded from the liberating prowess of knowledge, this country seems to witness, as in the past, a resurgence in demands that knowledge be parceled out, through tight fisted notions of excellence, and concepts of merit that pander to the early advantages of already empowered groups. 3. For much of our history, most of our people were told that they were excluded, for no fault of theirs in th....
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....who will say that he will teach only members of this group, and not that group. To each and every group, and to each and every individual in those groups, we promised that never again would we allow social circumstances of the groups they belonged to be a factor in our assessment of their social worth. We gave our people the hope that we, the upper crust of India will change, and that their patience and tolerance of our inhumanity, over many millennia in the past and for a few decades more into the future, will soon be rewarded by our humanization. History says, Don't hope On this side of the grave, But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme. Seamus Heaney, The Cure at Troy: A Version of Sophocles' Philoctetes, (London Faber and Faber, 1991); cited in Sen, Amartya, The Idea of Justice (Allen Lane, 2009). 5. We formed our nation-state to make sure that hope and history, as an actuality of experience of our people - all of our people, belonging to all of the groups into which they belonged to - would indeed rhyme. That is what our Constitution promises. And that is the mo....
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.... us in these matters before us relate to the following: (1) Can the executive abrogate a legislatively mandated and specified social justice program in the field of education? (2) Do private non-minority unaided professional educational institutions have the right to pre define a social group and admit into their institutions from only those social groups and exclude all other students the opportunity of being considered for admission into such educational institutions? It is against the background of the ark of hope that our Constitution is, that we have to answer the above questions. II Facts of the Case: The Private Non-Minority Unaided Professional Educational Institution 8. The private educational institution, started and managed by the Army Welfare Education Society ("AWES"), named Army College of Medical Sciences ("ACMS"), located in the National Capital Territory of Delhi ("NCT of Delhi"), seeks to admit only students who are wards or children of current and former army personnel and widows of army personnel (henceforth, we will be referring this entire group as "wards of army personnel" for ease of use). 9. AWES, it is stated, is a chari....
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....fy the needs of children and army wards because of paucity of total seats and stringent domicile requirements enacted by State legislatures. The admission policy of the private non-minority unaided professional educational institution. 11. ACMS, in the year 2008, began to admit students. It sought to do this by a set of rules framed by itself, and which may be briefly stated as follows: (a) That only those students who have the relevant qualifying high school education and who have taken the common entrance test conducted by appropriate authorities for admission to medical colleges in the NCT of Delhi, and have secured the minimal qualifying marks in such a test, shall be eligible to apply to ACMS; (b) Of the students satisfying (a) above, only those who are wards or children of former and current army personnel and widows of army personnel (including those who have died in service) shall be eligible for admission; (c) that within the group of students satisfying conditions (a) and (b) above, admission based on strict inter-se ranking, based on marks secured in the common entrance test shall be followed for admitting students; and (d) there shall not be any distincti....
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....g to the Scheduled Castes and Scheduled Tribes" certain percentage of seats shall be reserved by every affiliated college. The reservations were as follows: (i) Scheduled Castes (15%); (ii) Scheduled Tribes (0.5%); (iii) Defence Category (5%); (iv) Physically Handicapped (3%); and (v) Supernumerary Seats for Kashmiri Migrants (one seat). The said reservations, it is explicitly acknowledged were being provided for pursuant to Clause 5 of Article 15 of the Constitution, which was inserted by Constitution (Ninety Third Amendment) Act, 2005, which became effective on 20-1-2006. Ordinance 30 of GGSIU also specifically left out educational institutions that are owned by minorities from being subject to the reservations policy enunciated by it. 14. In addition to the above, as is the norm in rest of the Country wherein educational institutions are subjected to the laws of the legislature with territorial jurisdiction in which such educational institutions are located, ACMS is also subject to the laws of the NCT of Delhi, the territorial jurisdiction in which ACMS is located. In particular the applicable laws would be as cited below. The preamble of Delhi Act 80 of 2007 states that i....
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....er category, as may be prescribed." 15. Further, Delhi Act 80 of 2007 also provides in Section 13 that all institutions "shall, subject to the provisions of this Act, make admission through a common entrance test to be conducted by the designated agency, in such manner, as may be prescribed", and in Section 14 that any "admission made in contravention of the provisions of this Act, or the rules made thereunder, shall be void." 16. However, ACMS based its admission policy on certain exemptions granted by the Government of Delhi exempting ACMS' admissions from the operation of provisions of Delhi Act 80 of 2007 with respect to allocations, as between Delhi and non-Delhi students, reservations as mandated in Sub-section (2) of Section 12, and the requirement that all admissions, in such reserved categories and with respect to remaining seats, be based on inter-se merit as determined by marks secured in the common entrance test. Such exemptions it is claimed have been granted in exercise of powers allegedly provided in Clause (b) of Sub-section (1) of Section 12 of the Delhi Act 80 of 2007. The said exemption specifically allowed ACMS to admit only wards of army personnel in acco....
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....ource is only being delineated on the basis of occupation and not on the basis of religion, race, caste, sex or place of birth or any of them, and inter-se ranking within the "source" is based on qualifying marks in the common entrance test, and the admission policy is otherwise transparent, fair and non-exploitative the admission policy of ACMS ought to be upheld. In addition, it is also submitted that in as much as wards of army personnel suffer educational disadvantages, in comparison with the civilian population, and this affects the morale of army personnel, it would be in the national interest to allow ACMS and AWES to effectuate such admissions. Further, it is also claimed that such a right has been recognized previously by the courts in India. Further, with respect to it being an unaided educational institution, it was argued that ACMS is run purely out of regimental funds that have been held to be private funds, and not belonging to the Indian Army. Moreover, it is also claimed that the lease granted to it by the Army and the Ministry of Defense, in whose possession the public land, was for an initial period of thirty years, extendable to ninety nine years, to which effect....
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.... AWES to admit only wards of army personnel in all its seats, the Division Bench upheld the admission policy of ACMS. In this regard, the Division Bench also over-ruled the finding of learned Single Judge that the ratio of TMA Pai (supra)as explained in P.A. Inamdar(supra), implied that ACMS needs to admit a "sprinkling" of students from the general category. It is against the judgment of the Division Bench that appeals by way of special leave petitions have been filed. III The Submissions of the Appellants: 20. The learned Counsel for Appellants, Dr. Aman Hingorani, submitted that ACMS is not an unaided institution, and further it is also posited that ACMS and its parent society be construed to be an "instrumentality of the State" under Article 12. To this effect the following facts were pointed out: (i) that a little over 25 acres extent of expensive land has been given on lease by Ministry of Defence, Union of India, in the Cantonment of Delhi; access has been provided to the Base Hospital; and further that affairs of AWES and of ACMS are substantially and wholly managed by regular officers of the Indian Army and headed by the Chief of Army Staff; and (ii) that regulati....
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....t and from the operation of the reservations as provided therein. Further, it was also pointed out that the power being claimed, vide clause (b) of Sub-section 1 of Section 12 of Delhi Act 80 of 2007, by Government of Delhi to grant such an exemption is only the power to vary the percentage of allocable seats as between Delhi and non-Delhi students, and not to allocate all the seats in ACMS to wards of Army personnel. Moreover, it was also contended that in as much as private unaided educational institutions are essentially rendering services that the State ought to be rendering, and wherein such services are "public services," admitting only wards of Army personnel in all the seats in ACMS would be a violation of Article 14 and Article 15. 22. In this regard, it was also argued by Dr. Hingorani that even reservations cannot be to the extent of 100%, in as much as such reservations would amount to a violation of Article 14, and in any event any reservations with respect of constitutionally permissible classes would need statutory or executive provision. In the event, the permission granted by Government of Delhi to allow ACMS to admit only wards of Army personnel amounts to a su....
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....zontal reservation ought to be kept at the least level possible, so that it does not whittle competitive selection in the general category completely. In this regard it was pointed out that horizontal reservations, even for 18.49 million disabled, forming 1.8% of India's population, is only 3%. In any event, wards of Army personnel already enjoy a wide variety of preferential treatments, including reservations across the country, as a part of reservations provided to wards of all Defence personnel. In the instant case 5% reservations are provided for wards of Defence personnel, under Ordinance 30 of GGSIU, and also pursuant to the rules of Delhi Government, pursuant to Section 23(g) of Delhi Act 80 of 2007 and the power granted by the enabling provisions in clause (c) of Sub-section (2) of Section 12. To grant an exemption in favour of ACMS, in contravention of specific statutory provisions, and to the exclusion of all other constitutional claimants to special treatment, as also the claim of general students to equality, would violate the discipline imposed by Articles 14 and 15 of the Constitution. The Submissions of the Respondents: 25. Learned Senior Counsel, Mr. K.K. Venu....
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....elied on the following observation in para 127: "Nowhere in Pai Foundation either in the majority or in the minority opinion, have we found any justification for imposing seat-sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota or management seats." The learned Senior Counsel submitted that according to P.A. Inamdar only a consensual agreement can be arrived at between private unaided professional institutions regarding seat sharing, and the State could not unilaterally demand any such sharing. In this regard, the learned Senior Counsel was equating the demand by the Appellants that the State should permit admissions to professional unaided non-minority professional colleges only on the basis of marks secured in the common entrance test to a demand by the State of a "quota" of seats by the State for imposition of reservations or for that matter any other purpose. Further, given the issues faced by Army personnel, it was submitted that a larger public interest is involved in the armed forces personnel having comfort and security that their wards can get a fair opportunity for securing admissions into ....
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....decision of the High Court, the applicable laws, the affidavits of the Medical Council of India & Government of Delhi and the submissions made before us by the Counsel appearing for the parties, we now turn to frame the questions to be answered. It would appear that there are two sets of issues that need to be addressed. The first would be a preliminary set of issues, wherein the question of whether ACMS is an instrumentality of the State or an aided institution or an unaided institution would have to be answered, so that we could then determine which laws would be applicable. As argued by the learned Counsel for Appellants, the Delhi Act 80 of 2007 would be applicable with respect to the matters on hand, if ACMS is an unaided non-minority educational institution. If that be the status of ACMS, then we'd have to next consider whether the exemptions granted by the Delhi Government are valid. 29. It is also noted that at no stage of the proceedings, whether before the High Court or in this court, have the Respondents challenged the constitutional validity of Delhi Act 80 of 2007, and specifically the allocations and reservations as mandated by Section 12 therein. The said Act was ....
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....of decision by this Court in TMA Pai, as further explained in P.A. Inamdar pressed by the learned Senior Counsel appearing for the Respondents turns out to be the correct one, then we would have to hold that ACMS has the right to fill all of the seats in ACMS not covered by sub-section (2) of Section 12 with wards of Army personnel who have qualified in the appropriate common entrance test. 31. In light of the above, we frame the following specific questions: Preliminary: 1. Is ACMS an instrumentality of the State or an aided institution? 2. If the answer to Question 1 above is no, then whether the exemptions granted by Delhi Government are valid? Substantial: 3. If the answers to both questions 1 and 2 above are no, whether ACMS can admit only wards of Army personnel to the seats not covered by reservations mandated by Delhi Act 80 of 2007, without any regard to the merit of other Delhi or non-Delhi students who may have secured higher marks in the appropriate common entrance test? V Analysis Preliminary Questions: Question 1: 32. Is ACMS an instrumentality of the State or an aided institution? We note that with respect to the issues of....
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....h complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. This presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together." Question 2: 34. In light of the fact that we have decided to proceed on the basis that ACMS is a private non-minority unaided professional institution, we now turn to the issue of the validity of the exemptions granted by Delhi Government from the operation of Delhi Act 80 of 2007. By permitting ACMS to allocate all its seats to wards of Army personnel, albeit ones who had taken and qualified the common entrance test, the Delhi Government effectively suspended the operation of the provisions of the Act with regard to selection of students solely on merit from the general category, and also the provisions that mandated allotment and reservation of seats to various constitutionally permissible classes, including but not limited to Scheduled Classes and Scheduled Tribes. 35. At the very beginning of this portion of this judgment, we wish to make an observation ba....
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....he Act and that it would act upon the provisions of Sub-section (1) of Section 12. Sub-section (2) of Section 12 provides that with respect to seats in sub-section (1) of Section 12, an institution shall reserve as provided for in sub-sections (a), (b) and (c) of sub-section (2) of Section 12 that follow. Clearly the phrase "[I]n the seats mentioned in sub-section (1)" at the beginning of sub-section (2) of Section 12 reveals the intent of the legislature that the specific reservations provided for Scheduled Castes and Scheduled Tribes and other provisions that may be made with respect to other weaker segments and other permissible categories of classes, shall be applied with respect to each and every category of seats identified in sub-section (1) of Section 12. Looking at sub-section (2) of Section 12 closely, this would mean that not only are reservation of seats, for instance with respect to Scheduled Castes and Scheduled Tribes, to be made with respect to Delhi students, non-Delhi students, and also with respect to all students admitted under the management quota. 38. Instead of appreciating the primordial importance of sub-section (2) of Section 12 of the Delhi Act 80 of 2....
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....e of the Act gets frustrated. Nowhere in the Act do we find any powers granted to the government to not implement the Act. Nor does the Act state anywhere that the Government of Delhi could suspend the implementation of the provisions with respect to reservations for weaker segments, and also simultaneously give the merit of the students scoring higher marks than wards of Army personnel a go by. To put it pithily, there is no power conferred on Government of Delhi to grant any exemption in favour of any institution from the operation of any of the provisions of the Act. 40. The Government of Delhi in its affidavit claims that its powers to provide such exemptions also flow from Article 162 of the Constitution. In relevant part Article 162 states "[S]ubject to the provisions of this Constitution the executive power of a State shall extend to the matters to which the Legislature of the State has power to make law." We simply fail to see how a Government that claims to be functioning in accordance with the Constitution of India, in which democracy has been deemed to be a basic feature of the Constitution, can claim the power under Article 162 to set at nought a declared, specified ....
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....essed into service by the Government of Delhi, the best result that would follow would be that Government of Delhi has been given the power to vary the allocation of seats between Delhi and non-Delhi students, belonging to all sections and within the broadest class of those who have taken the common entrance test and qualified. It cannot be read to mean that a power has been granted to Government of Delhi to create entire new classes of students from within those eligible for admission to professional institutions by itself, and exclude all those students who are not members of such classes, notwithstanding that they may fall in the categories of Delhi or non- Delhi students. 43. Further, we also hold that such an interpretation to be strained. This is so for two reasons. One, the fact that the word "and" is always used as a conjunction between the first part of a sentence and the second part of a sentence, and the word "or" is used to denote an alternative in a series of exclusive arrangements. Consequently, we hold that the correct interpretation of sub-section (b) of Section 12(1) is as follows: first part - "Eighty five percent of the total seats except the management seats,....
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....ts, but even an entirely new class. This plea of Government of Delhi is untenable and unsustainable as the same is not supported by any of the provisions of the Delhi Act 80 of 2007 and in fact runs counter to them. One of primary purposes of the act, the goal that it seeks to achieve, is described in terms of "allotment" of seats to Scheduled Castes, Scheduled Tribes and other weaker segments. The word allot, in its verb form, is defined by the Concise Oxford Dictionary Eight Edition, Oxford University Press (1990)to include the meaning of the act to give or apportion to, distribute officially to. Allotment is what results from such an act i.e., an apportionment. The word "reserve" is defined to also include the meaning of "order to be specifically retained or allocated for a particular person", and the word "reservation" is the act or an instance of reserving or being reserved. The word "allocate" is defined to include the meanings of an act to assign or devote something for a purpose or to a person. Consequently, it can only be surmised that while the words allocation was used in the said Act in the context of apportionment of seats between Delhi and non-Delhi students, the word....
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....sions of the Act are mandatory in nature. The Government of Delhi has clearly acted on the basis of a misplaced belief of its powers, under the Act, a misunderstanding of the statutory language of the Act, and its relevant provisions, and also in complete contravention of constitutional principles. 46. In light of the above, we have to hold that Delhi Act 80 of 2007, and Section 12, including both sub-sections (1) and (2) are clearly applicable, with respect to admission of students to ACMS. VI Substantive Questions: Question 3: 47. Whether ACMS can admit only wards of Army personnel to the seats not covered by reservations mandated by Delhi Act 80 of 2007, without any regard to the merit of other Delhi or non-Delhi students who may have secured higher marks in common entrance test? 48. Having resolved the preliminary issues in Part V above, we now turn our attention to the issue of whether ACMS has an unfettered right to define its own source of students with respect to all the seats remaining after setting aside the seats for categories of students covered by sub- section (2) of Section 12, read with sub-section (1) of Section 12 of the Act. 49. The main cont....
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....e projected as contrary to Constitutional values, and impermissibly reducing national welfare by allowing those with lesser marks to be selected into professional colleges; and at the same time, such a delimitation by a private educational institution, is supposedly permissible under our Constitution, and we are not then to ask what happens to that very same national interest and welfare in selecting only those students who have secured the highest marks in a common entrance test. We are reminded of the story of the camel that sought to protect itself from the desert cold, and just wanted to poke its head into the tent. It appears that the camel is now ready to fully enter the tent, in the desert, and kick the original inhabitant out altogether. 51. In any case we examine these propositions below, as we are unable to convince ourselves that this Court would have advocated such an illogical position, particularly given our history of exclusion of people, on various invidious grounds, from portals of education and knowledge. Surely, in as much as this Constitution has been brought into force, as a constitutive document of this nation, on the promise of justice - social, economic a....
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....at different places on the same or different dates and ther may be clash of dates, If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, and number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such c....
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....graphs would stand for the proposition that both minority and non-minority unaided institutions have the right to admit students who have secured higher marks in the entrance test, and not an equivalence between minority and non-minority institutions to engraft their own "sources" or "classes" of students from within the general pool. The rights of minority unaided educational institutions to select students, based on merit, is with respect to students who belong to that same minority. It is not a right to define a source as such. We turn to excavate the rights of minority unaided educational institutions, and non-minority unaided educational institutions in the larger body of judgment P.A. Inamdar to get a more synoptic understanding of the ratio in that judgment. 55. In paragraph 124 of P.A. Inamdar it is stated that the majority did not "see much of a difference between non-minority and minority unaided educational institutions". That expression "much of a difference" gives the clue that there is an actual difference between the rights of minority unaided institutions under clause (1) of Article 30, and the rights of nonminority unaided institutions under sub-clause (g) of Cl....
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....f available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This Court made the observation that such an act, of imposition of a quota, would be an encroachment on the freedoms granted pursuant to Article 30(1) to minority institutions, and an unreasonable restriction under Article 19(1)(g) read with Article 19(6) when imposed on non-minority educational institutions. The Court was not suggesting that insistence, by the State, on making merit based selections within the groups, general category for the non-minority institutions, and the specific minority group to which the minority educational institution belonged, from which the two kinds of institutions were expected to select students from, amounts to an imposition of a State quota. The context of the discussion was of imposition of reservations on private unaided non-minority educational institutions. This is borne out by the last sentence in paragraph 125, where it is stated "[M]erely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide be....
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....cifically stated that having regard to the larger interests and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admission by providing a centralized and single window procedure. Such a procedure, can secure grant of merit-based admissions on a transparent basis." 57. Clearly, the continuing concern expressed by the Seven Judge Bench in Inamdar, echoes the concern of this Court in TMA Pai: the need to ensure merit, as determined by the marks secured on the qualifying exam, is taken care of and thereby achieve academic excellence. In the post clause (5) Article 15 scenario, we are looking at all the seats that are available in the non-reserved category. Those seats have to be filled by non-minority institutions on the basis of merit of students, i.e., ranking determined in accordance with marks secured, in the general category, comprising of the entire set of students who have taken the qualifying examination and secured the minimal marks. 58. It should be clear from the above that simply taking a few stray sentences from here and there in P.A. Inamdar and asserting from those sentences a ratio or ....
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.... To the matrix of parallel institutions, P.A. Inamdar also gleans from TMA Pai, another dimension on which to differentiate educational institutions: by level of education, general collegiate education, professional graduate level education and post-graduate level of education. It is within this labyrinthine maze that this court sought to find similarities and differences between minority educational institutions and non-minority educational institutions. Consequently, care must be taken in interpreting P.A. Inamdar, and a few stray sentences here and there ought not to be taken to indicate an actual holding or ratio. In P.A. Inamdar itself, the seven judge bench cautioned that such dependence on stray sentences would lead us astray. We have to delve into the foundations and the architectural super-structure erected by P.A. Inamdar to eke out the correct ratio applicable to the facts of the instant case. 59. In paragraph 91, of P.A. Inamdar, this Court enunciated one of the main holdings of TMA Pai as: "the right to establish an educational institution, for charity or for profit, being an occupation is protected by Article 19(1)(g)". In this regard, in as much as the majority in....
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.... right is, generally speaking subject to laws imposing reasonable restrictions in the interest of general public. In particular laws may be enacted on the following subjects: (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; (ii) the carrying on by State of any trade, business, industry or service whether to the exclusion, complete or practical of citizens or otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities. 93. The employment of expressions "right to establish and administer" and "educational institutions of their choice" in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational institution has a right to admit students of its own choice, it can as a matter of its own free will admit students of nonminority community. However, non-minority ....
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....e can only be the minority to which the minority educational institution claims it belongs to. Once the choice is exercised to be an educational institution that serves a minority, the source itself is given by Clause (1) of Article 30 and depends on whether the group claiming to be a minority is actually a minority or not, as determined at the State level. Neither AWES nor ACMS, are protected by any constitutional provision that allows it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army personnel now constitute a "Socially and Educationally Backward Class", then under Clause (5) of Article 15, it is for the State to determine the same, and provide by law, for reservations of wards of Army personnel, in consonance with the constitutional jurisprudence extant with regard to how a Socially and Educationally Backward Class is to be delineated, for instance by removal of the creamy layer, and that the extent of reservations to be provided ought not to exceed certain levels etc. That has not happened in this instant matter. Consequently, all of the permissible restrictions and regulations under Clause (6) of A....
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.... Pai Foundation has classified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, the need for merit and excellence therein is not of the degree as is called for in the context of professional education. 105. Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions....... However, a distinction is to be drawn between unaided minority educational institution at the level of schools and undergraduate colleges on the one side and institutions of higher education, in particular those imparting professional education, on the other side. In the former, the scope of merit-based selection is practically nil and hence may not call for regulation. But in the case of the latter, transparency, and merit have to be unavoidably taken care of and cannot be compromised. Those could be regulatory measures for ensuring educational standards ........ The source of this distinction between two types of educa....
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....d professional colleges do not have the right to choose their own "source" from within the general pool. The equivalence between minority and non-minority unaided institutions, apart from that distinction because of clause (1) of Article 30, was to be on the basis that both are subject to reasonable restrictions pursuant to clause (6) of Article 19, that neither minority nor non-minority institutions could maladminister their educational institutions, especially professional institutions, that affect the quality of education, and by choosing students arbitrarily from within the sources that they are entitled to choose from. In the case of non-minority institutions, especially professional institutions, the "source" can only be the general pool, and selection has to be based on inter-se ranking of students who have qualified and applying or opting to choose to be admitted to such non-minority educational institutions. In the case of minority educational institutions, the "source" can be delimited to the particular minority the institution belongs to. To hold otherwise would be illogical, even if one were to assume that what is afforded to minority institutions is only a protection r....
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....al provisions need to be made to protect the wards of Army personnel, this may possibly be done by the State, by laws protected by Clause (5) of Article 15. The private society, of former and current army personnel by themselves cannot unilaterally choose to do the same. 67. Prior to the enactment of 93rd Constitutional (Amendment) Act 2005, whereby Clause (5) was inserted into Article 15 of our Constitution, the ratio in TMA Pai, as further explained by P.A. Inamdar, would have foreclosed any options for the society and this country to relax the strict requirement that all admissions be on the basis of "merit based on marks secured in qualifying examinations." The other option would have been for Courts to find, in the interests of justice, to expand the "doing complete justice" jurisprudence under Article 142 to correct such instances of injustice, which raises its own problems. If we find that every unaided educational institution can define its own source, then we run head long into a situation wherein the entire field of higher education is carved up into "gated communities", with each new educational institution defining its own source in whichever manner it may choose to,....
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....s raised the question of whether the provisions of clause (5) of Article 15 violate the basic structure of the Constitution in so far as they relate to enablement of the making of "special provisions", by law, with respect to admissions of Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes into private unaided non-minority educational institutions. This would obviously raise an issue regarding applicability of Delhi Act 80 of 2007 in the instant matter. We are hence, required to look at this issue too. In pressing the challenge of basic structure doctrine against clause (5) of Article 15, the learned Senior Counsel relied on the opinion of our learned brother Justice Dalveer Bhandari in Ashoka Kumar Thakur, on the provisions of clause (5) of Article 15 that are applicable with respect to private unaided non-minority educational institutions. We note the specific text of the constitutional provisions below, and thereafter briefly summarise the opinion of Bhandari J, which learned Senior Counsel adopts wholesale as his submissions. Clause (5) of Article 15 states as follows: "Nothing in this article or in sub-clause (g) of clause (1) of Ar....
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....institutions. 71. The main conclusion reached was that "educators" who do not take a "paisa of public money" ought to be free from restrictions of State imposed reservations. Further, it was also opined that even though non-minority unaided educational institutions would continue to exist, and educators would have their occupation, the "greatest impact on the educator is that neither he nor his institution will choose whom to teach", in as much as in "49.5%" of the time the State would determine, through a policy of reservations, who the educators would teach. In this regard, the test for violation of basic structure doctrine was conducted by an impact and effects test (or what is called as a "rights test"), claiming that the observations of I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 in para 151 (ii) mandated such a test. In the first phase, the so called impact stage, it was determined that clause (5) of Article 15 would indeed affect the "identity" of the freedom of private citizens to engage in the charitable occupation of starting, operating, managing, working in, financing and teaching in nonminority unaided educational institutions. To this extent, the observations ....
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....and for the reasons discussed hereafter with humility and utmost respect beg to differ from the view taken by our esteemed brother Bhandari J. 73. Clause (5) of Article 15 is an enabling provision and inserted by the 93rd Constitutional (Amendment) Act, 2005 by use of powers of amendment in Article 368. The 93rd Constitutional (Amendment) Act, 2005 was in response to this Court's explanation, in P.A. Inamdar, of the ratio in TMA Pai, that imposition of reservations on non-minority unaided educational institutions, covered by sub-clause (g) of clause (1) of Article 19, to be unreasonable restrictions and not covered by clause (6) of Article 19. The purpose of the Amendment was to clarify or amend the constitution in a manner that what was held to be unreasonable would now be reasonable by virtue of the Constitutional status given to such measures. The correct approach would then be to test whether powers of amendment in Article 368 do extend to imposing restrictions on a right, which otherwise would have been held to be "unreasonable" on account of a judgment of this Court. Once that test is conducted and found to be not violating the basic structure of the Constitution, the grou....
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....uch a situation, to judge the validity of law, it is the "right test" which is more appropriate." 75. Paragraph 151(ii) in I.R. Coelho, when read by itself, may suggest that an effect and impact test be used; however we are unable to do so because of what was stated in para 142 of I.R. Coelho stated above. This is on account of the fact that if we were to take the concluding answer given to a specific question, and conflating the same to the status of a ratio applicable to all other general or specific facts, we run the risk of not recognizing the rationale by which the Court had arrived at the final answers. This has a deleterious effect on law. The broader principles that are applied, in a specific manner to particular fact patterns located in the specific questions that the courts set out to answer, would then be obliterated, and the narrow application that the Court finds for a specific situation, which is but an instance of the broader principle, the genus, would have taken over. Moreover, in the preceding paragraph 150, this Court enunciated that it is the constitutional validity of the Ninth Schedule laws which have to be adjudged by applying the "direct impact and effect....
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....14 and Article 19 by application of the "rights test" and "essence of the right" test taking the synoptic view of the Articles in Part III as held in Indira Gandhi case. 1975 Supp SCC 1 Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such law(s) will not get the protection of the Ninth Schedule. (v) This is our answer to the question referred to us vide order dated 14-9-1999 in I.R. Coelho v. State of T.N" 76. It should be pointed out that I.R. Coelho judgment was delivered to answer the question, as pointed out in para 5, as to whether it is "permissible for the Parliament under Article 31-B to immunize legislation from fundamental rights by inserting them into the Ninth Schedule, and if so, what is its effect on the power of judicial review of the Court". In para 78 of I.R. Coelho it was noted that the "real crux of the problem is to the extent and nature of immunity under Article 31-B can validly provide". The question of immediate purport was whether Article 31-B provided a blanket protection such that legislative enactments which destroy the basic structure could be included in the Ninth Schedule, and thereby ....
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....f judicial review to determine the constitutional validity of such exercise." 78. It would be pertinent to note that the provisions of new clause (5) of Article 15 do not purport to take away the power of judicial review, or even access to courts through Articles 32 or 226. Neither do the provisions of clause (5) of Article 15 mandate that the field of higher education be taken over by the State itself, either to the partial or total exclusion, of any private non-minority unaided educational institutions, a power that was most certainly granted under clause (6) of Article 19, which had been inserted by the 1st Constitutional Amendment in 1951. The purport of its provisions is that sub-clause (g) clause (1) of Article 19 should not be read to mean that if the State were to make "special provisions" with respect to admission of Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes to non-minority unaided educational institutions the same should not be deemed to be unreasonable. A small portion, of one of the activities of one particular occupation in the entire field of occupations that are a part of the guaranteed freedoms by subclause (g) of clause ....
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....ns of the State, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental rights and directive principles have to be balanced. The balance can be tilted in favour of the public good. The balance however cannot be over-turned by completely overriding individual liberty. This balance is an essential feature of the Constitution." (emph. Supp.) 80. Further, it was also stated in, in para 102, that in evaluating the permissibility of an amendment, one needs to look at, as done in Waman Rao v. Union of India, (1981) 2 SCC 362 how far the amendment is "consistent with the original; you cannot by an amendment transform the original into the opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law." In other places, as in para 105, it is noted that "Economic growth and social equity are two pillars of our Constitution, which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part ....
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....rticular Constitutional amendment is evaluated as to whether it completely changes the very "identity" of the entire Constitution itself. Those "over-arching principles" are what gives the Constitution its identity, and when they are destroyed would the identity of the Constitution have been changed completely. 82. This is made very clear by what this Court in I.R. Coelho perceived to be the status of the nature of immunity granted by Article 31-B: "Article 31-B gives validation based on fictional immunity. In judging the validity of constitutional amendment" i.e., the amendment that places a state law in the Ninth Schedule "we have to be guided by the impact test." (see para 149) "The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights..." Further on in para 150 the Court concludes "The result of the aforesaid discussion is that the constitutional validity of the Ninth Schedule laws can be adjudged by applying the direct impact and effect test i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequences thereof." 83. The above cited paragraph lends further support to our earlier obser....
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....n Part III, and yet may not lead to a violation of the basic structure doctrine. The second sentence in sub-para (i) states emphatically that if a law abrogates or abridges a fundamental right and also violates the basic structure then it must be set aside. At this stage it is not yet clear whether the law is a constitutional amendment exercised under Article 368 to make an amendment to the main body of the constitutional text, or the law is an amendment that places laws in the Ninth Schedule, whereby such laws in the Ninth Schedule do not become a part of the Constitution as such. That clarification comes from the next sentence: "The validity or invalidity would be tested on the principles laid down in this judgment". That sentence clearly indicates that the same has to be determined in accordance with the principles laid down in the entire judgment and not just in the conclusion. That principle was unequivocally laid down in para 142 that had been cited earlier, which recognizes that the test of Constitutional amendments on the anvil of the basic structure doctrine would have to be in accordance with the test delineated in M. Nagaraj. 85. In light of the above discussion, we a....
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....termine the contents thereof. Further, the Court in M. Nagaraj recognized that the standard of judicial review of a constitutional amendment, on the touchstone of the doctrine of the basic structure, is an entirely different exercise than review of state legislation with respect to its impact on a specific fundamental right. Analysing the rationale and mode of analysis of the Court in S.R. Bommai v. Union of India (1994) 3 SCC 1, it was stated, in para 23, that "it is important to note that the recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole.... These principles are part of constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Article 14, 19 and 21. Some of these principles may be so important and fundamental, as to qualify as "essential features" or part of the "basic structure" of the Constitution, that is to say, they are not open to amendme....
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....re when the amending power is exercised and a main element of the provisions of the Constitution is altered. Rather, the courts have to be careful in assessing whether those over-arching principles themselves are abrogated. By no stretch of imagination could one claim that truncation of one of the activities that were deemed to have been one of the many essential features of one of the occupations of the many occupations that are guaranteed by one of clauses of the freedom code, by itself could constitute an over-arching principle, and further that such a principle has been abrogated. It is not the change in the identity of any one element of the conspectus of activities of one occupation in a plethora of occupations that itself forms a part of the many different kinds of freedoms that leads to the violation of the basic structure doctrine; but rather whether the over-arching principles, that connect one fundamental right to the other that are so abrogated as to change the very identity of the Constitution which is the true test to evaluate whether a constitutional amendment has violated the basic structure doctrine. In this regard, the Court in M. Nagaraj further goes on to pithil....
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....en replaced by another newer part, was indeed the same ship or not. For the formalists, the identity had changed because none of the original parts were there; and in fact the extreme amongst them claimed that the identity had changed when the first part was itself changed. For the functionalists, the ship was identically the same because the parts that replaced the worn out parts were of the same quality, shape and size and performed exactly the same functions as previously specified. In either case, both the puritanical originalists delighted in the squabble without there being any pragmatic resolution. 90. Unfortunately, we as constitutional adjudicators do not have the luxury of facile metaphysical speculations, and imposing conclusions arrived thereupon on this country, by ignoring the practical impact of the ship and the larger purposes that it is supposed to serve. Indeed our ship, the Constitution, was never intended to remain in the harbour and was intended to set sail. The narrative of our Ship of Theseus takes a different form for us. 91. We liken our Constitution to the Ship of Theseus, with the difference that the ship itself has been provided with sufficient woo....
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.... journey too many were actually getting pushed off the ship, or that the changes were such that the ship would turn into a tiny raft, in which the people on the margins would necessarily get pushed into the ocean, etc., the ship of our nation, the Constitution, would sink. If inappropriate changes were made, the ship would sink; and if the appropriate changes were to not be made the ship would sink. Neither wrong action, nor abstinence from action was permissible. 92. In this regard, this Court, charged with the responsibility of ultimately interpreting the design of the structure of that ship, stated thus: "[C]onstitutional adjudication is like no other decisionmaking. There is a moral dimension to every major constitutional case: the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities; and because of the good sense of the judges when interpreting it. It is that informed freedom of action of judges that helps to preserve and protect our basic document of governance." (para 30 of M. Nagaraj). 93. Proceeding on the rationale as enunciated in the cited paragraphs, this Court in M. Nagaraj, then enunciated that the "th....
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.... account the fact that the changes that are made may while truncating one small element, may also be strengthening many other elements, and thereby strengthening the very basic structure of the Constitution. Thus care needs to be exercised to avoid rhetorical flourishes about the importance of one small activity that may be truncated in order to achieve larger purposes. Obviously, some small activities could be of primordial importance. Some rights may be important, but not of primordial importance, and their importance has to be assessed in terms of their place in the overall context of constitutional values, and goals. 97. If indeed one essential activity of the many essential ones that form the freedom to engage in one of the occupations of the many occupations that are a part of the many freedoms guaranteed by the Constitution, conflicts with an amendment that intends to strengthen the process of achievement of one of the main navigational tools and thereby the goals of the nation-state itself, should such an amendment be declared to be unconstitutional and against the basic structure? Shouldn't one also look at the damage that such a declaration can cause to many of the oth....
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.... that Article 14 does not merely aspire to provide for our citizens mere formal equality, but also equality of status and of opportunity. The goals of the nation-state are the securing for all of its citizens a fraternity assuring the dignity of the individual and the unity of the nation. While Justice - social, economic and political is mentioned in only Article 38, it was also recognized that there can be no justice without equality of status and of opportunity (See M. Nagaraj). As recognized by Babasaheb Ambedkar, at the moment that our Constitution just set sail, that while the first rule of the ship, in the form of formal equality, was guaranteed, inequality in terms of access to social and economic resources was rampant and on a massive scale, and that so long as they individually, and the social groups they were a part of, continue to not access to social and economic resources that affords them dignity, they would always be on the margins of the ship, with the ever present danger of falling off that ship and thereby never partaking of the promised goals of that ship. Babasaheb Ambedkar with great foresight remarked that unless such more fundamental inequalities, that foster....
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.... development in its classical sense, in which the progress of people was measured on all dimensions of human dignity. Indeed, these imperatives of statecraft, of governance of the nation state, were even transcribed into fundamental, though non-justiciable, Directive Principles of State Policy. The fact that they were made non-justiciable was not to deny their absolute essentiality, but rather that the legislatures, and the executive under the supervision of the elected representatives, were best placed to make choices with regard to issues of policy, while the judiciary endowed with the responsibility of interpreting and upholding the Constitution. An important and particular aspect of our Constitution that should always be kept in mind is that various aspects of social justice, and an egalitarian social order, were also inscribed, not as exceptions to the formal content of equality but as intrinsic, vital and necessary components of the basic equality code itself. To the extent there was to be a conflict, on account of scarcity, it was certainly envisaged that the State would step in to ensure an equitable distribution in a manner that would be conducive to common good; neverthel....
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....C 36 by a Constitutional Bench, it was held: "One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and the machinery of Government to be able to pursue the constitutional vision into indeterminate and unforeseeable future.... Our Constitution charges various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation....... Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the constitutional text have to be perforce admitted..." 104. To be sure, powers granted to the State are not unlimited, and indeed our constitutional jurisprudence specifies that Part III is one such zone of limitation. The rigour and discipline of fundamental rights, granted to citizens are to be the checks on the power of the Stat....
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....and for the proposition that enlargement of the egalitarian content of the equality code ought not to necessarily be deemed as a derogation from the formal equality guaranteed by Article 14, 15(1) or 16(1). Achievement of such egalitarian objectives within the context of employment or of education, in the public sector, as long as the measures do not truncate elements of formal equality disproportionately, were deemed to be inherent parts of the promise of real equality for all citizens. As stated succinctly in M. Nagaraj, it is an issue of proportionality. "Concept of proportional equality expects the State to take affirmative action in favour of disadvantaged sections of the society within the framework of liberal democracy" and further that "[U]nder the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not of his but social." With regard to distribution of social opportunities and social benefits, Kapadia J. (as he then was) notes that some define "social justice in terms of rights", and some....
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....to Article 16(1), laying down the principle that State action in pursuit of egalitarianism cannot in principle be seen as antithetical to broader codes of equality, but rather a means to realize true equality of status and opportunity amongst hitherto excluded groups. This position found its resounding acceptance in Indra Sawhney v Union of India(1992) Supp (3) SCC 217 , in which it was held in no uncertain terms that egalitarianism is an intrinsic element of conception of equality under Articles 14. 107. A purely technical argument may be made that this Court in Indra Sawhney had reflected upon egalitarianism in the context of Article 16(4) and public employment, and hence ought not to be seen as a part of our constitutional jurisprudence with respect to admissions to private unaided educational institutions. This may be a case of splitting hairs to deny the validity of an over-arching principle. In countless cases, involving the private sector, this Court has held that legislation to achieve social and economic justice cannot be held to be a violation of fundamental rights. (See: State of Karnataka v Ranganatha Reddy(1977) 4 SCC 471) What they could be and ought to be tested o....
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....ch as it could have in education, including higher education. An essential understanding was that because the private sector would expand even in areas such as higher education, the burden on the State of providing such services would decline. The burden of the State does not comprise merely of the burden of its financial outlays. The burden of the State obviously also comprises of the positive obligations imposed on it, on account of the egalitarian component of the equality code, the directive principles of State policy, and the national goals of achievement of an egalitarian order and social justice for individuals and amongst groups that those individuals are located in. If the State had clearly articulated that its goal was to withdraw from such crucial and vital fields, such as higher education, and that it was also not expecting the private sector to carry any of the burdens of ensuring an egalitarian order and realize the goal of social justice in at least some measure, then the dimensions of constitutional litigation on that front could very well have taken a different shape, and questions about whether such actions constitute a fraud on the face of the Constitution could ....
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....ed good of everyone. As very prominent thinkers and policy specialists have been arguing for nearly two decades, that the unthinking and extreme beliefs in LPG have led to many deleterious impacts globally, cannot be ignored. (See the work of Nobel Laureate, Joseph Stiglitz: Globalization and its Discontents W.W. Norton and Company (2002). Another Nobel Laureate, Kenneth Arrow, and renowned economists such as Samuel Bowles and Steven Durlauf have also posited that the ideological notions that all governmental programs to achieve egalitarian goals are ineffective has fundamentally eroded the very culture of nations, and the moral and constitutional commitments of the policy makers to pursue such goals, with the "dismal prognosis of immutable inequality." Meritocracy and Economic Inequality, Oxford University Press. Moreover, it is also very well recognized that markets, instead of eradicating discriminations and disadvantages, may in fact perpetuate the same. (See Cass R. Sunstein, "Free Markets and Social Justice" Oxford University Press (1997), and also Reservation and Private Sector: Quest for Equal Opportunity and Growth, Ed. Sukhadeo Thorat, Aryama and Prasant Negi) Rawat Publi....
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.... the nation. Each and every particular educational institution is a part of a large scale national endeavour to educate our youngsters. The word "institution" is capable of many meanings. It could be used in a narrow sense; however, it is also used, for instance, to refer to a broad class of fields of human and organizational endeavours: we talk about press and the media as an institution, we talk about legislative field as an institution, we talk about the executive as an institution, and indeed we talk about the judiciary, and the organizations engaged in the act of dispensing justice, collectively as an institution. We talk about universities, and seats of higher learning, collectively as an institution. At this level of generality, certainly the entire field of "higher education" is to be conceived as an institution informing our national life. The educated youngsters coming out of the portals of our each individual college enter into jobs that may require different degrees of discretionary judgment, which in turn may also affect the lives of other people, including those in socially and educationally disadvantaged groups. Consequently, we have to necessarily hold that Article ....
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....f egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with our national aspirations of establishing a society in which Equality of status and opportunity, and Justice, social, economic and political, would imply that the private sector which offers such facilities ought not to be conducting their affairs in a manner which promote existing discriminations and disadvantages. There are two potential interpretations of the use of the word "only" in clause (2) of Article 15 Mahendra P. Singh, "V.N. Shukla's Constitution of India", 11th Ed. (Eastern Book Company, 2008) . One could be an interpretation that suggests that the particular private establishment not discriminate on the basis of enumerated grounds and not be worried about the consequences. Another interpretation could be that the private establishment not just refrain from the particular form of overt discrimination but also ensure that the 39 Constituent Assembly Debates - Vol. VII. consequences of rules of access to such private establishments do not contribute to the perpetration of the unwarranted social disadvantages associated with the functioning of the social, cultural and economic orde....
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....ave to be discerned that reservations based on social and educational backwardness would in fact promote the selection of those who are truly meritorious amongst each group, on account of their demonstrated ability to be in the higher rungs of achievement within comparable situations of life's circumstances and disadvantages. Such systems, with the same normative imperatives are used in other countries, and in fact more economically successful countries, with a demonstrated record of immense scientific and technical achievements over the past hundred years: for example, the United States of America. Peer group norm referenced grading is extensively used there. The idea is simple: that given a minimal level of achievement of competence, grading as between similarly situated and provisioned individuals would reflect both true talents and also individual variations in behaviour such as hard work, diligence, the ability to overcome challenges etc. 115. Even if one were to assume that at some conceivable level, some youngsters from Socially and Educationally Backward Classes or Scheduled castes and Scheduled Tribes are actually relatively less proficient, at the entry point, than tho....
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....at such students in the future will not participate, in innovative contexts. No empirical data, which has been systematically collected, and is free of implicit cognitive biases against reservations, to the best of our knowledge, has ever been placed before any court of law. To the contrary, proponents of reservations point out to the fact that certain regions of the country, which have had reservations for nearly hundred years, in fact have witnessed an explosion of private unaided colleges in technical & engineering, and scientific fields, and also arguably are the regions in which high tech industry is flourishing. The argument that academic standards in our institutions of higher education need to be high may be valid; nevertheless, we would also need to be careful in assessing whether any decline in standards, if any, has been on account of students in reserved categories entering institutions of higher education, or on account much wider systemic weaknesses in the field of higher education, including the way our universities are managed, and the levels of research conducted or not conducted. Without separating such causal factors, it would be constitutionally impermissible, a....
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....ty, he or she would not even know that the problem really exists to begin the process of adapting technical inventions to solve those particular problems. In as much as the innovator does not belong to such communities, even if they are broadly aware of the problem, they may not have sufficient "sticky" knowledge about it to innovate an appropriate product or service or solution to effectively solve such problems. (See: Eric von Hippel, Democratizing Innovation MIT Press (2006).) 119. Given above, we address the issue of various innovations that may be required at the lower levels of social strata in India. One may need to apply technology for a particular localized problem, say in remote villages, such as a network or a web interface that allows women to pictorially navigate certain sites to find out the best prices for their produce. To design such a web interface, the designer would need to know the language of the end user, as well as the particular culture, and levels of cultural identification of the end users. Additional factors may also be surmised such as knowledge of cultural variations, particular social mores and problems emanating from such mores. Would a person who....
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....en surely they would also require youngsters from amongst themselves who could understand the vast changes taking place in the socio-economic organizations, on account of rapid technological changes, and explain to them, or understand them and articulate their hopes, fears and aspirations. This would mean that apart from Article 21 implications for the dignity of lives of other members of such disadvantaged groups, there are also implications about Article 19 freedoms themselves. These rights are extended to all citizens, and one of the fundamental reasons why they are extended is to ensure that every citizen is capable of engaging in a civil, reasoned, and reasonable debate about social, economic and political choices. This would obviously deepen and enrich the democratic processes of this country, and thereby make it more stable. 121. In a recent judgment, this Court, has explicitly recognized that the meaning and purport of each article of the Constitution has to be gleaned from the text of the article, and also the meaning of that text as it may be further informed and transformed by other provisions in the other parts of the Constitution. The meaning and extent of a fundame....
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....lege going age group with access to higher education. Coupled with this, the role of the State, which a lot of the disadvantaged people feel is in the hands of the upper crust (including the creamy layer of such groups), in higher education is increasingly dwindling in terms of seats provided through state funding or aid. For instance nearly 85% or more of all engineering seats are in the private sector and about 50% in the field of medicine; and the number of aided and government colleges in other fields have just not kept pace. If a vast majority of our youngsters, especially those belonging to disadvantaged groups, are denied access in the higher educational institutions in the private sector, it would mean that a vast majority of youngsters, notwithstanding a naturally equal distribution of talent and ability, belonging to disadvantaged groups would be left without access to higher education at all. That would constitute a state of social emergency with a potential for conflagration that would be on an unimaginable scale. 124. Indeed at one level the recommendation of Bhandari J., in Ashoka Kumar Thakur that high quality institutions catering to the primary and secondary sch....
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....edge. To allow that to happen again, now, in the garb of a right of the educator to choose his/her own students, and a formal pretense of non-discrimination while turning a blind eye to the discrimination inherent in the system of selection for entry, which does not test real talent or ability would tantamount to a desecration of all constitutional values. 126. The learned Senior Counsel, also seemed to be advocating the position that we ought to assume that TMA Pai, as explained in P.A. Inamdar, is the final word with respect to the content of sub-clause (g) of clause (1) of Article 19 even in the context of a basic structure review. This we hold leads us into a tautological cul de sac. However, we believe the methodology adopted by us, as enunciated in M. Nagaraj case, and as gleaned from our constitutional jurisprudence, would over come such an impasse. A tautology is one in which the assumption contains all the elements of the conclusion in a logical argument. The tautology in the basic structure review urged upon us is this: Premise 1: Any derogation from any of the essential features of any kind of activity guaranteed freedom under sub-clause (g) of clause (1) of Article 1....
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....hose to do so only on the grounds of the contents of sub-clause (g) of clause (1) of Article 19. In terms of M. Nagaraj's ratio, what we have is a finding of this court in TMA Pai that freedoms of private unaided educational institutions under sub-clause (g) of clause (1) of Article 19 extends to the concept of being free from imposition of reservations, but not an analysis or finding about the status of that specific freedom, i.e., freedom to be free from reservations, within the freedom code itself, much less an analysis of how that freedom to be free from reservations relates to the equality code, and constitutional identity in terms of its institutions of governance. Indeed, we do not even find that this Court has engaged in an analysis of the relationship of that right to be free from reservations in light of the powers granted to the State, under sub-clause (ii) of clause (6) of Article 19 to even abrogate, partially or wholly, the participation of private citizens in any of the activities guaranteed by sub-clause (g) of clause (1) of Article 19. In as much as the issue of the content of the freedoms of non-minority unaided institutions came about collaterally, and were not t....
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......". Certainly, the issue of whether the State can impose reservations, on private non-minority unaided educational institutions, pursuant to a Constitutional amendment, are not even raised in TMA Pai. Moreover, while some aspects of the contents of education as an occupation have been noted, many other aspects have not been evaluated, especially in light of the goals of egalitarian social order, and ensuring of social justice, richness of democratic processes and attitudes that inform them, and ultimately dignity of vast swaths of humanity. Hence, to depend on the analysis in TMA Pai, with regard to the constitutional status of the contents of the rights of non-minority unaided educational institutions, in the context of a basic structure review would not only be inapposite, but also lead the Court down the wrong path. 132. In light of the above, we are necessarily compelled to look at those unexamined aspects, including the contents of the very occupation that is guaranteed by sub-clause (g) of clause (1) of Article 19. This is imperative because a test of a constitutional amendment on the anvil of the basic structure doctrine using the "essences of rights" test i.e., the "ove....
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.... to comprehend as one of its chief goals the tasks to which liberal education, in so far that all education is liberal education, has to necessarily serve. 135. Furthermore, certain other aspects of education as an occupation also have to be taken into account to assess the nature of content of the rights granted to "educators" under sub-clause (g) of clause (1) of Article 19. Note should also be made of the fact that the Court in TMA Pai has specifically characterized the nature of the occupation to be "charitable", and in fact specifically notes that private educational institutions have been started by educationists, philanthropists etc. This was so because "[E]ducation is a recognized head of charity." 136. A charitable activity, is also a philanthropic activity. Charity, the basis on which the charitable activity is undertaken, such as the setting up of, managing and operating educational institutions, is defined to include the following meanings: giving voluntarily to those in need, an institution or an organization for helping those in need, kindness & benevolence, tolerance in judging others and love of one's fellow men. In a similar vein, philanthropy involves a love....
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....be derogated from if individuals from other races, or women, or those who face social disadvantages are also not provided access. In this regard, many universities have also come to the view that one of their essential purposes lies in providing higher education to ensure that in every sphere of social action, in which choices are made that impact differentially on different segments of the society, there be diversity of representation from all segments of the society. This is recognized as necessary to enrich and strengthen democratic processes, by bringing diversity of views and ensuring that debate occurs in a reasoned and reasonable manner, which in turn integrates the society and polity. Knowledge has expanded by leaps and bounds, and not all of it can be taught at the stage of secondary school education. The ability to engage with this expanding knowledge, to autodidactically keep pace with such expanding frontiers, is typically provided only at collegiate level.47 This implies that unless access is provided on a wide scale, across all swath of the population, the debates about social, political, economic and technological choices would be uninformed, and therefore also likel....
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....tion that knowledge is generated and applied in diverse social contexts. Consequently, from a pedagogic and educational perspective, it is felt that having a diverse student body would enable the scholars to interact, learn about the diversities in life, and social worlds, and appreciate the diverse points of views and needs. This obviously enhances the learning environment for students, and is viewed as an essential component of the environment of the university in which all students from diverse backgrounds would study. It is viewed as a necessary component of the "knowledge inputs" and also an essential aspect of learning to be. We must recognize that many Indians, essentially from the upper crust, would not have had the opportunity to study in such universities, which are centers of great academic excellence, if those universities, educationists, and their philanthropists who had financed such institutions had stuck to archaic notions of inherent inequality amongst human beings, and insisted only on the demonstrated ability to get high marks. Our students were selected because they had demonstrated an ability to excel within the background of our current socio-economic circumst....
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....n ancestors, to all of humanity, and then to deny the responsibility to share it with the best amongst youngsters who are located in diverse groups would be a betrayal of humanity. 142. Knowledge is also power. It empowers the individual. It also empowers the group to which that individual belongs to, and has culturally been induced to show greater affinity for. Consequently, the propagation of knowledge only amongst certain groups, whether done deliberately, or done on supposed objective tests of merit that are context and background insensitive, would lead to massive imbalances in the level of power to understand, and articulate, amongst social groups. Let us not deny the truth. We were a horrifically divided society. We may have progressed a bit. Yet we remain endemically unequal, as between groups. Caste, gender, and class still are the structural impediments to the realization of a truly egalitarian society. The inherited social, educational, cultural, political and economic disadvantages of vast swaths of humanity in our country are propagated across generations. A system that predominantly results in giving access to only certain groups would necessarily work towards sust....
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....heres in such ignorance and perpetuated in the inegalitarian social order that ignorance creates, nourishes and sustains. Education is expected to free the youngster, from elite backgrounds, that perpetuate the oppression of those from deprived backgrounds, from the dehumanization that is implicit in the very acceptance of a hierarchical order of superior and inferior. One of the great dangers that a highly stratified society faces is that when the oppressed, trained to think that hierarchy, and the power to oppress are the natural order on account of the culture perpetrated by the oppressors, fight for relief from oppression, that they currently face, the cry for liberation might then turn into a liberty and a right to oppress the previous oppressor. That process dehumanizes them too. The task of education, as a cultural action for freedom, is to promote the establishment of a truly humanized society. It pays to quote Paulo Freire extensively from his work "Pedagogy of the Oppressed" Continuum, New York (30th Anniversary Edition, 2005): "While the problem of humanization has always, from an axiological perspective, been humankind's central problem, it now takes the charac....
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....their "generosity," the oppressor must perpetuate injustice as well. An unjust social order must perpetuate injustice as well. An unjust social order is the permanent fount of this "generosity," which is nourished by death, despair and poverty. That is why dispensers of false generosity become desperate at the slightest threat to its source.....True generosity consists precisely in fighting to destroy the causes which nourish false charity." 144. Our non-minority unaided educational institutions, including professional educational institutions, in claiming to be engaging in a charitable occupation, and yet claiming the right to ignore the conditions of social injustice and inequality that have a bearing on academic accomplishments of students at a young age, which are the indicia of oppression, would necessarily perpetuate the conditions of lack of access to knowledge that can transform the praxis of socially and educationally disadvantaged groups. The occupation they would be engaging in would be imbued with "false charity." For the past two decades, this country has been in the throes of early "amor" with the false but mesmerizing promises of laissez faire free markets, libera....
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....on is simple: every individual, in every group, is worthy of being educated. In as much as certain resources, such as seats in institutions of higher education, including professional education, are scarce, then they have to be allocated. The allocation can only be based on the fundamental ontological assumption that those who excel, within equal social circumstances, should be rewarded with access to higher education. Any other formula of distribution of such access, would be fundamentally inhuman, and violate Article 14 of our Constitution. Given our past history of caste and gender based discrimination, and the continuation of endemic inequalities, in social, economic and cultural spheres, including education at all levels, giving freedom to an educator to choose who he or she would want to teach, and teach only those who belong to socially and educationally advanced groups, would be a curse on our constitutional project. The fact that non-minority unaided educational institutions insist on "social disadvantages blind" admission policies is proof that they are not recognizing the true purpose of education as an occupation. Hence, State intervention is a categorical imperative, b....